¶1rendered the opinion and decree of the Court, as follows;
¶2Plaintiff, wbo seeks in this proceeding to confirm bis tax title, appeals from a judgment in favor of the defendant, the tax debtor, sustaining the latter’s assault upon and annulling the tax sale upon which plaintiff’s title, is based.
¶3Defendant urges many grounds for annulling the tax sale, but one only need be noticed, namely; that no notice *158of delinquency and intended sale was served as required by law.
¶4Tbe only proof submitted by plaintiff of tbe service of sucb notice, is the declaration to tbat effect contained in tbe tax deed itself.. The officer whose duty it was to make tbe service did not testify, nor was bis return, if any existed, put in evidence. On tbe other band, defendant as a witness denies tbat any notice was served upon or. received by him.
¶5Under sucb circumstances we must conclude tbat the Law as to this notice was not observed, for tbe unsupported presumption arising from the declaration of tbe tax deed must yield to the positive denial of tbe tax debtor.
¶6In re. Nylka Land Company, etc., 8 Court of Appeals, 151.
¶7The prescription embodied in Article 233 of tbe Constitution of 1898, affords no protection to plaintiff.
¶8■ Defendant acquired title and physical possession of tbe property in’1883 and still retained same at the time of tbe tax sale in 1900. Shortly thereafter be delivered possession to two parties to whom be bad agreed to sell tbe property, and be permitted them to continue in possession even after they bad rejected tbe title and bad declined to carry out their promise of purchase.
¶9While thus in possession they secured a, written permit from plaintiff to occupy tbe premises. This was done without tbe knowledge or consent of defendant, who, as soon, apparently, ás be was apprised thereof, demanded and secured of them a return of tbe property, the physical possession of which be has since retained.
¶10Upon these facts it is clear tbat, notwithstanding the secret permit issued by plaintiff, defendant legally pre*159served-in himself the actual, physical possession of the property from the date of the tax adjudication to the present time.
¶11R. C. C., 3446.
¶12And such being the case, it follows that plaintiff is without right to invoke the prescription embodied in Article 233 of the Constitution of 1898, which has no application to a ease where the tax-debtor, after 'the adjudication, continues in actual possession of the property.
¶13Carey vs. Cagney, 109 La., 83.
¶14There is no error in the judgment and it is accordingly affirmed..
¶15Judgment affirmed.